Mining Magnates and Traditional Leaders: The Role of Law in Elevating Elite Interests and Deepening Exclusion 2002-2018

A wave of legislation currently before Parliament seeks to build on the foundations of other interconnected post-apartheid laws and give a veneer of legality to a host of precarious deals cutting politically connected business and traditional leaders into South Africa’s mining industry, Dr Aninka Claassens argues in a paper published by the Mapungubwe Institute for Strategic Reflection (Mistra).

“Far from bringing a new dawn for local communities, mining has been a curse that has destroyed many rural livelihoods, divided communities and seen billions siphoned out of South Africa through deals which, because they are secret, are easy for mining magnates to manipulate,” she writes.

Claassens, Director of the Land and Accountability Research Centre (LARC) in the Department of Public Law at the University of Cape Town, explains how various post-apartheid laws were developed in concert with one another to enable traditional and political elites to use their homeland antecedents and their political connections to cut themselves into the country’s most significant source of wealth on terms that exclude and dispossess the poor black people who own the land on which mining takes place.

The paper describes how laws entrenching the power of traditional leaders were developed in tandem with the Minerals and Petroleum Resources Act of 2002  to undercut the property and citizenship rights of the 17 million South Africans living in the former homelands just as the epi-centre of the mining boom moved to the former homelands. These laws were fiercly resisted and two key laws did not make it into operation – one about the control and ownership of communal land, the other about the punitive powers of traditional courts.  Yet government and the mining houses have treated traditional leaders as though they have ownership of communal land, and the sole authority to represent those living within their contested apartheid-era tribal boundaries.

They have no such powers in law. Only the Minister of Rural Development and Land Reform, as nominal owner of most communal land, has the legal authority to sign surface leases, and only after obtaining the consent of those whose informal land rights are affected by his or her decision. This is because of the Interim Protection of Informal Land Rights Act (IPILRA) of 1996 which was enacted to give effect to the right to tenure security contained in section 25(6) of the Constitution.

Mining deals signed by traditional leaders without the consent of the people whose land rights are affected are thus legally  precarious, as has recently been argued in the Constitutional Court. Traditional councils have also failed to include women and elected members as required by law.

The bills that seek to legitimise these unlawful deals, and the systematic looting of rural people’s residual assets that is described in the paper, are unlikely to survive constitutional scrutiny in the long run.

But in the short term they send the message that the post-apartheid government is following in the footsteps of its colonial and apartheid predecessors in denying that customary law provides property rights for ordinary people, and in insisting that those in the former homelands are primarily tribal subjects, bound by the decisions of traditional leaders, rather than equal citizens in a unitary South Africa.

A recent report of the South African Human Rights Commission provides damning evidence of the abject failure of the social and labour plans meant to ‘uplift’ the livelihoods of mining affected communities, and the Department of Mineral Resources failure to comply with environmental and local government laws as well as the protections contained in IPILRA.  The new Minister of Minerals, Mr Gwede Mantashe has admitted to serious dysfuntionality in provincial offices of the DMR and has closed some offices.  Yet government seems determined to ram through the Traditional and Khoi-San leadership bill despite strong rural resistance and its flagrant flouting of the property and citizenship rights of the poorest South Africans.

National hearing on the underlying socio-economic challenges of mining-affected communities:

Interim Protection of Informal Land Rights Act:

Minister Gwede Mantashe closes Mpumalanga office of Mineral Resources:

Working paper by Dr Aninka Claassens:

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